The Supreme Court’s inability to rule on the United States vs. Texas sends us back to square one on immigration policy

On Thursday last week, a deadlocked Supreme Court failed to overturn an Appeals Court ruling which has prevented President Obama’s 2014 executive actions on immigration from coming into effect. Catalina Amuedo-Dorantes writes that the Supreme Court’s lack of action means that 4 million undocumented immigrants – many of them parents – remain in immigration limbo. She argues that it also underscores the importance of the coming presidential election; whoever moves into the White House will likely pick several new Supreme Court judges, who could profoundly influence the direction of future US immigration policy.

Late last week, in the case United States vs. Texas, the Supreme Court of the United States failed to revive DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and the extended DACA (Deferred Action for Childhood Arrivals) programs announced by President Obama back in November 2014. The programs, which would have granted temporary relief from deportation and work authorization to approximately 4 million undocumented immigrants who have been in the country continuously since 2010, have not committed any crimes and have family ties to US citizens or permanent residents, thus continue to be blocked from implementation.

Was this surprising? To many it was not. The inability to issue a ruling is just a reflection of Supreme Court’s shorthanded status (following the death of Justice Scalia in February), which has led to a deadlock (4-4) in other important legal cases as well. However, it was devastating to many undocumented immigrant parents with US-born children or with children who benefited from DACA –the Deferred Action for Childhood Arrivals introduced by President Obama in 2012 that granted temporary relief from deportation and work authorization to young undocumented immigrants who had entered the country as children.

From a more pragmatic point of view, what does the Supreme Court’s disposition mean? Well, first of all, it means that approximately 4 million undocumented immigrants, most of them parents of children who are US citizens, are still in limbo; even if President Obama has vowed to continue other programs that prioritize the deportation of violent criminals. Should we care? I think we should if only for the sheer size of the US child population residing with undocumented parents. In 2009, twenty-three percent of youth under 18 years of age resided in an immigrant household, and 29 percent of those children had, at least, one undocumented parent. Furthermore, most of those children are US-born, accounting for 8 percent of all US citizen children or 4.5 million in 2012 –twice as many as in 2002.

Owing to the intensification of immigration enforcement at the local and state levels since 9/11, many of those children have suffered the deportation of a family member, typically their father or the head of their household. The broken up households struggle to make ends meet, suffering food and housing insecurity. The children find themselves overburdened with adult responsibilities that interfere with their schooling progression and adversely impact their health, cognitive and future employment outcomes. Given the emotional, cognitive and long-run socioeconomic costs of being raised in a single-headed household, not to mention the nonthreat of their parents’ presence in the country (as unauthorized, they have no right to healthcare or social security benefits, even though they contribute to the social security funds and, by raising the ratio of workers to retirees, they ensure the viability of Social Security) a cost-benefit analysis of the current fragmented approach to immigration enforcement is imperative. We know about its costs. Have we been able to quantify the benefits gathered from it?

But, in addition, the Supreme Court’s inability to rule on the case, underscores the importance of the upcoming elections. The new President will be responsible for the new Supreme Court’s appointments –three of the court’s justices are over 78 years old – and, thus, can significantly alter the court’s ideological balance and the future of immigration policy. Presumptive Republican nominee Donald Trump has adopted a hard line on immigration, vowing to deport the estimated 11 million undocumented immigrants currently residing in the country, including “dreamers” –the young undocumented immigrants who benefited from DACA. He has also promised to build a wall along the US-Mexico border that keeps on getting taller by the day and that, supposedly, Mexico will pay for. In contrast, the presumptive Democratic nominee Hillary Clinton has supported President Obama’s executive actions on immigration and has promised to work on and help enact a much needed comprehensive immigration reform within her first 100 days in office. The stark divide in their immigration positions is likely to influence an increasingly diverse electorate.

It has been estimated that 2.25 million of the 6.3 million US citizens living in the same household as a DAPA-eligible relative will be eligible to vote by 2020. Because this is one of the fastest growing segments of the electorate, they will inevitably constitute a rapidly rising political force whose response to immigration policy might be crucial in future national, as well as many state and local elections. After all, they are likely to have a personal connection to immigration policy and to the struggles associated with residing in a household subjected to the fear, anxiety, and financial hardships associated with tougher enforcement, all of which can impact their political participation.

So much is at stake in the upcoming elections. Until then, unfortunately, not much will be achieved on immigration policy.

Catalina Amuedo-Dorantes – San Diego State UniversityCatalina Amuedo-Dorantes is a Professor at the Department of Economics, San Diego State University, California. Her primary research area is labor economics, with a focus on contingent work, immigration policy, undocumented immigrants and remittances.